Mcnamara v. Mcnamara

• Decision Date: 09 July 2010
• Docket Number: No. 5D08-3130.,5D08-3130.
• Citation: 40 So.3d 78
• Parties: Heidi Leigh McNAMARA, Appellant,v.Dennis C. McNAMARA, Appellee.
• Court: Florida District Court of Appeals

40 So.3d 78

Heidi Leigh McNAMARA, Appellant,v.Dennis C. McNAMARA, Appellee.

No. 5D08-3130.

District Court of Appeal of Florida,

Fifth District.

July 9, 2010.

Theodore R. Doran of Doran, Wolfe, Ansay & Kundid, Daytona Beach, for Appellant.

Terry C. Young, Janet M. Courtney and Linda Hankins of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee.

COHEN, J.

We review the trial court's final judgment of dissolution of marriage and its decision to enforce the antenuptial agreement between Heidi Lee McNamara, Wife, and Dennis C. McNamara, Husband, under Georgia law. The trial court erroneously awarded Husband a credit for expenses incurred to maintain the marital residence during the parties' separation, and, accordingly, we reverse the $71,276.12 credit against the property's sale proceeds. We otherwise affirm the final judgment and the order upholding the validity of the antenuptial agreement.

This is the McNamaras' second appearance before this court.¹ Once again, we are confronted with a challenge to the parties' antenuptial agreement. The antenuptial agreement was executed in Georgia where the parties lived during the first ten years of their marriage before Husband retired and they moved to New Smyrna Beach.

Wife challenges the trial court's decision to enforce the agreement's Georgia choice-of-law provision because Georgia, unlike Florida, does not recognize the existence of a confidential relationship between persons who have agreed to marry. Therefore, she asserts that the agreement's choice of Georgia law is contrary to this state's public policy of fairness and the highest degree of good faith, candor, and sincerity in all matters relating to an antenuptial agreement. This court reviews de novo the trial court's choice of law determination. Collins Moving & Storage Corp. v. Kirkell, 867 So.2d 1179, 1181 (Fla. 4th DCA 2004).

“A contract is not void, as against public policy, unless it is injurious to the interest of the public, or contravenes some established interest in society.” Harris v. Gonzalez, 789 So.2d 405, 409 (Fla. 4th DCA 2001) (citations omitted). The mere difference between the law of the forum and that of a foreign state does not make application of the foreign law contrary to Florida public policy. Wilkinson v. Manpower, Inc., 531 F.2d 712, 715 (5th Cir.1976). Absent a public policy violation, this state enforces the parties' choice of law, in this case, Georgia. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 311 (Fla.2000); Baker v. Baker, 622 So.2d 541, 543 (Fla. 5th DCA 1993).

In Georgia, it behooves a person planning marriage to exercise ordinary diligence in making an independent verification of contractual terms and representations contained in an antenuptial agreement. Mallen v. Mallen, 280 Ga. 43, 622 S.E.2d 812, 815 (2005). In this state, it is black letter law that the parties to an antenuptial agreement do not deal at arms' length with one another and that the relationship is one of trust and confidence. See Lutgert v. Lutgert, 338 So.2d 1111, 1115 (Fla. 2d DCA 1976).

The trial court considered the difference between Florida's and Georgia's laws and found that the agreement met both state's standard for enforcement of an antenuptial agreement. Wife's overriding concern, framed as a public policy violation, is that the agreement inadequately provides for her. However, this alone does not invalidate an antenuptial agreement. See Del Vecchio v. Del Vecchio, 143 So.2d 17, 20 (Fla.1962). Further, a wife may waive her right to alimony of any type through an antenuptial or postnuptial agreement, and such waiver does not contravene public policy. Hahn v. Hahn, 465 So.2d 1352, 1353-54 (Fla. 5th DCA 1985).

In Baker, 622 So.2d at 544, this court held an antenuptial agreement which waived alimony and left the wife a pauper and potential ward of the state was not violative of Florida public policy. Despite the agreement's unfair and inadequate provision for the wife, it was freely and voluntarily executed with the benefit of full and fair disclosure of the parties' assets, and was valid and enforceable under both Pennsylvania and Florida law. Id. While the financial disclosure should be full, fair, and open, it does not need to be minutely detailed or exact. Del Vecchio, 143 So.2d at 21. The fact that one party apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify an antenuptial agreement. Casto v. Casto, 508 So.2d 330, 334 (Fla.1987); Del Vecchio, 143 So.2d at 20.

Florida's public policy does not protect the spouse who signs an antenuptial contract freely and voluntarily, has some understanding of his or her rights, and who has or reasonably should have had, a general and approximate knowledge of the proponent's property. Id. In this case, the trial court concluded that Wife was knowledgeable about her rights and had a general and approximate knowledge of Husband's assets. Early in their relationship, Husband discussed his need for an antenuptial agreement. Husband informed her that he was a partner in an Atlanta car dealership and owned a small percentage of an Orlando car dealership. Husband provided her with a current financial statement that showed he was a multi-millionaire and possessed significant income-producing assets. Wife was also provided financial statements of both dealerships in which the husband had an ownership interest, as well as financial information about Husband's family holding company. The trial court found that Husband not only made a full and frank disclosure of the extent of his finances, but that there was no further financial information to provide Wife. Although Wife received the financial statements the night before the agreement was to be executed, her general and approximate knowledge of Husband's worth was not confined to that disclosure.

Wife was not unsophisticated in such matters. She had formerly been employed as a defense industry contract administrator and later formed a business offering consulting services based upon her expertise in reviewing and understanding such contracts. Wife had previously executed a similarly detailed antenuptial agreement with her former spouse. Wife received several drafts of the antenuptial agreement and participated in its review and editing over the weeks preceding its execution. The parties' informal wedding, attended by a minister, one witness, and a photographer, easily could have been postponed to allow Wife additional time to review the financial statements, or to seek independent counsel which Husband and his counsel repeatedly urged her to do.

The same conclusions about disclosure governed the trial court's determination that the antenuptial agreement was valid. An inadequate provision for the impecunious spouse, as the trial court acknowledged in this case, raises a presumption of concealment or that the challenging spouse lacked knowledge of the proponent's finances at the time the agreement was reached. Casto, 508 So.2d at 333; Del Vecchio, 143 So.2d at 20. The proponent may rebut these presumptions by showing that there was either a full and frank disclosure of the nature, character, and value of the proponent's property to the challenging spouse before the agreement was signed, or that the circumstances were such that the challenging spouse reasonably ought to have had such knowledge. Del Vecchio, 143 So.2d at 19-20. The test is the adequacy of the knowledge of the challenging spouse; there must be some understanding of one's rights and a general and approximate knowledge of the proponent's property and resources. Id. at 21. The basic issue is concealment, not the absence of disclosure, and the challenging spouse may...